This is
an appeal of a summary judgment dismissing a third-party
demand against Sid J. Gautreaux, III, Sheriff and Ex Officio
Tax Collector for East Baton Rouge Parish, which was asserted
in a suit to quiet tax title to property sold at tax sale. We
reverse and remand for further proceedings.

FACTS

In
2008, property owned by Charlotte Williams, where she lived
in a trailer with her family, was sold at tax sale for
failure to pay 2007 ad valorem taxes in the amount of $32.00.
In 2012, the holder of the tax deed filed a suit to quiet tax
title.[1]In response, Ms. Williams claimed the tax
sale was an absolute nullity and asserted a third-party
demand against the Sheriff.

Ms.
Williams alleged she purchased the property in 1993 and
faithfully paid taxes thereon in the amount of approximately
$33.00 per year. She contends she was surprised when she
received notice in 2007 that her 2006 taxes were $315.00, but
paid the amount anyway. Ms. Williams claims she contacted the
tax collector's office about the increase and was told
the amount was correct. The 2006 tax was, in fact, incorrect,
as she owed only $32.00.

Ms.
Williams alleges she received a letter in 2008 notifying her
the 2007 taxes on the property had not been paid and, if left
unpaid, the property would be sold. She claims she
immediately called the tax collector's office and spoke
to an employee who said Ms. Williams "made a big
overpayment" in 2007, which was still being held in the
tax collector's escrow account. Ms. Williams contends the
employee told her the balance in the escrow account could be
used to pay the 2007 taxes. Ms. Williams claims she
instructed the employee to pay the outstanding taxes from the
overpayment in the escrow account, and she was not asked to
complete any additional paperwork. Ms. Williams contends she
relied upon the agreement to satisfy the tax debt from the
overpayment. But, the 2007 tax debt was not paid with those
funds, resulting in Ms. Williams' property being sold. In
2012, months before this suit was filed, Ms. Williams
received a $283.00 refund from the Sheriff, the amount of the
2006 tax overpayment.

Ms.
Williams alleges she had no knowledge her home was sold at
tax sale until she was served with the petition to confirm
tax title. She claims the sale occurred due to errors and
omissions of the Sheriff, which she contends constitute
willful, outrageous, reckless, or flagrant misconduct.
Accordingly, in the event the tax sale was not declared an
absolute nullity, Ms. Williams sought to recover from the
Sheriff the value of her property, damages suffered during
the litigation, and attorney's fees.

On June
23, 2014, the trial court signed a judgment confirming and
quieting the tax title. Ms. Williams did not appeal that
judgment. The trial court later denied a motion for summary
judgment filed by Ms. Williams seeking a declaration that the
tax sale was null and void. Ms. Williams appealed; however,
that appeal was dismissed since it was taken from a
nonappealable interlocutory judgment. MACWCP II, LLC v.
Williams, 2015-0876 (La.App. 1 Cir. 10/19/15)
(unpublished action).

Ms.
Williams and the Sheriff then filed cross-motions for summary
judgment relative to Ms. Williams' third-party demand.
The Sheriffs motion asserted Ms. Williams could not meet her
burden of proof at trial because she could not prove she
actually spoke with someone in the Sheriffs office about
applying the overpayment to her unpaid taxes. The Sheriff
further alleged Louisiana Revised Statutes 47:2124 applies
and provides him with immunity for the performance or failure
to exercise his duties as tax collector, except when his acts
or omissions constitute criminal, fraudulent, malicious,
intentional, willful, outrageous, reckless, or flagrant
misconduct. The Sheriffs motion for summary judgment
additionally asserted Ms. Williams could not meet the
heightened burden of proving his or his employees' acts
were criminal, fraudulent, malicious, intentional, willful,
outrageous, reckless, or flagrant misconduct. Ms. Williams
countered that summary judgment should be granted in her
favor declaring the tax sale an absolute nullity or,
alternatively, ordering the Sheriff to pay her damages and
attorney's fees because the tax sale resulted from his
failure to credit her overpayment held in escrow to her tax
debt. The motions were heard on the same day, and the trial
court granted the Sheriffs motion for summary judgment,
finding Ms. Williams did not show she could prove she spoke
with someone in the Sheriffs office, and even if she could,
she could not meet the heightened burden of proof required by
Section 47:2124 to prove an exception to immunity.

Ms.
Williams now appeals the November 30, 2016 judgment granting
the Sheriffs motion for summary judgment and dismissing her
claims against the Sheriff. She also asks this court to
declare the June 23, 2014 judgment confirming and quieting
the tax title an absolute nullity.

DISCUSSION

A
motion for summary judgment shall be granted only if the
motion, memorandum, and supporting documents show there is no
genuine issue as to material fact and that the mover is
entitled to judgment as a matter of law. La. Code Civ. Pro.
art. 966A(3). The summary judgment procedure is favored and
is designed to secure the just, speedy, and inexpensive
determination of every action. La. Code Civ. Pro. art.
966A(2). In determining whether summary judgment is
appropriate, appellate courts review evidence de
novo under the same criteria that govern the trial
court's determination of whether summary judgment is
appropriate. Reynolds v. Bordelon, 14-2371 (La.
6/30/15), 172 So.3d 607, 610.

A
summary judgment may be rendered or affirmed only as to those
issues set forth in the motion under consideration by the
court at that time. La. Code Civ. Pro. art. 966F. The burden
of proof is on the mover. See La. Code Civ. Pro.
art. 966D(1). However, if the mover will not bear the burden
of proof at trial on the matter before the court on the
motion, the mover's burden does not require that all
essential elements of the adverse party's claim, action,
or defense be negated. Instead, the mover must point out to
the court that there is an absence of factual support for one
or more elements essential to the adverse party's claim,
action, or defense. Thereafter, the adverse party must
produce factual evidence sufficient to establish that he will
be able to satisfy his evidentiary burden of proof at trial.
If the adverse party fails to meet this burden, there is no
genuine issue of material fact, and the mover is entitled to
summary judgment as a matter of law. La. Code Civ. Pro. art.
966D(1). Because the applicable substantive law determines
materiality, whether a particular fact in dispute is material
can be seen only in light of the substantive law applicable
to the case. Bryant v. Premium Food Concepts, Inc.,
16-0770 (La.App. 1 Cir. 4/26/17), 220 So.3d 79, 82.

The
Sheriff moved for summary judgment, in part, on the basis
that he is immune from liability to Ms. Williams pursuant to
Section 47:2124, which pertinently provides:

B. Liability shall not be imposed on tax collectors or tax
assessors or their employees based upon the exercise or
performance or the failure to exercise or ...

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